Washington Supreme Court Expands Physicians’ Duty to Third Parties

by Cozen O'Connor
Contact

Cozen O'Connor

Most states have laws either requiring or permitting mental health professionals to disclose information about patients who may become violent. These voluntary or mandatory reporting laws require a balancing of the confidentiality of information disclosed within the doctor-patient relationship and public safety. These reporting laws provide exceptions for health professionals who might otherwise be liable for breaching their patient’s confidentiality.

On December 22, 2016, the Washington Supreme Court issued its decision in Volk v. DeMeerleer, No. 91387-1, 2016 Wash. LEXIS 1374, in which it expanded the duty of physicians to protect third parties who might be victims of violence, even in the absence of actual threats against identifiable targets and even where the physician-patient relationship is limited to out-patient treatment. The ruling increases physicians’ potential legal liability by expanding the group of individuals to whom he or she may owe a duty of care, and by increasing what is required for the physician meet the standard of care by requiring providers to delve further into patient statements regarding violence in order to reveal potential threats.

In Volk, Beverly Volk, the mother of Rebecca Schiering, and Schiering’s oldest son (collectively, Volk) sued psychiatrist Howard Ashby and Spokane Psychiatric Clinic PS (the clinic) for medical malpractice and medical negligence after DeMeerleer murdered Schiering and her nine-year-old son and attempted to murder her oldest son.

Prior to the attack, DeMeerleer had been an outpatient of psychiatrist Howard Ashby for nine years, during which time he was treated for bipolar and associated disorders. He had expressed suicidal and homicidal ideations, but never named Schiering or her children as potential victims. DeMeerleer began a serious relationship with Schiering in 2005. Before breaking up in 2009, Schiering and DeMeerleer were living together with Schiering’s three children.

DeMeerleer met with Ashby in April 2010, for what would be the final time. Ashby noted that DeMeerleer’s mood was unstable and that he had suicidal ideations, but that DeMeerleer had promised not to act on them. Ashby continued DeMeerleer on his existing medication regime.

Schiering and DeMeerleer briefly mended their relationship, but on July 16, 2010, Schiering ended their relationship for good. On the night of July 17, or the early morning of July 18, 2010, DeMeerleer entered Schiering’s home and killed her and her nine-year-old son. Schiering’s older son was able to escape. DeMeerleer returned to his home and took his life.

Volk alleged that Ashby and the clinic breached their duty under Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983), which held that once a special relationship exists between a mental health professional and his or her patient, the mental health professional owes a duty of reasonable care to any foreseeable victim of the patient (the Petersen duty).1 Ashby and the clinic moved for summary judgment on the basis that the attack was not foreseeable and that Ashby did not owe DeMeerleer’s victims a duty of care. Despite acknowledging a special relationship between himself and DeMeerleer, Ashby and the clinic argued that they had no duty to warn Schiering because DeMeerleer “never communicated an ‘actual threat of physical violence against a reasonably identifiable victim or victims.’”

In opposing summary judgment, Volk’s expert psychiatrist opined that Ashby had breached the standard of care “by failing to inquire into DeMeerleer’s suicidal thoughts and instead relying on [his] self-reporting.” The expert opined that further “inquiry into DeMeerleer’s mental state … may have revealed the threat so that further action could have been taken to prevent harm to Schiering and her sons.”

The Washington Supreme Court overturned the trial court’s grant of summary judgment in favor of Ashby and the clinic. The court held that the Petersen duty exists in the outpatient setting, without regard to the ability of the psychiatrist to exert actual control over his or her patient. In so holding, the court held that the duty to act with reasonable care toward third parties is “informed by the standards and ethical considerations of the mental health profession” in identifying and mitigating the dangerousness of psychiatric patients. The court held that the “duty imposed by reasonable care depends on the circumstances,” which could require “providing appropriate treatment, warning others of the risks posed by the patient, seeking the patient’s agreement to a voluntary commitment, making efforts to commit the patient involuntarily, or taking other steps to ameliorate the risk posed by the patient.”

In applying the holding to the facts of this case, the court found that there was a question of fact for the jury to determine as to whether DeMeerleer’s actions were foreseeable. Because DeMeerleer had “negative fantasies [that] were directed at his ex-wife and her lover” during a prior divorce, Volk’s expert opined that “inquiry into DeMeerleer’s state of mind prior to the attack may have revealed similar thoughts directed at Schiering and her children.”

This case potentially has ramifications for many first-level providers, in addition to psychiatrists and psychologists, including emergency medicine physicians and primary care physicians. This decision could also be used as a basis for expanding the duty of care owed to victims and potential victims outside of the health care field to encompass employers and family members who are aware of potentially threatening behaviors exhibited by those close to them.

For physicians and their insurers, this ruling increases their potential legal liability by expanding the breadth of individuals to whom a physician may owe a duty of care, and by augmenting what is required to meet the standard of care by requiring providers to delve further into patient statements regarding violence in order to reveal potential threats.

1 The Petersen duty is based, in part, on the seminal California decision, Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 551 P.2d 334 (1976), and is frequently referred to as the Tarasoff duty.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cozen O'Connor | Attorney Advertising

Written by:

Cozen O'Connor
Contact
more
less

Cozen O'Connor on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.